High Court dismisses Omtatah’s petition on JSC bias in judge promotions
Justice Mugambi concluded that the claims of discrimination and marginalisation were unsubstantiated, affirming that judicial appointments and leadership designations are based on objective criteria rather than the court a judge currently serves.
The High Court has dismissed a petition by Busia Senator Okiya Omtatah alleging that the Judicial Service Commission (JSC) has been sidelining judges from the Environment and Land Court and the Employment and Labour Relations Court in promotions and leadership appointments.
Senator Omtatah argued that judges from these specialised courts have historically been overlooked for elevation to the Court of Appeal, with only High Court judges securing such appointments.
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He also claimed that these judges are frequently excluded from presiding judge roles at court stations and are denied allowances. In his petition, filed in July 2022, Omtatah sought to compel the JSC to ensure continuous representation of special court judges in the Court of Appeal.
However, Justice Lawrence Mugambi ruled that there was no evidence of bias in the selection process. He emphasised that all candidates for the Court of Appeal are assessed equally based on merit, professional competence, integrity, fairness, and a demonstrable commitment to public service.
“Neither the Constitution nor the Judicial Service Act segregates judges from special courts or the High Court when being considered for appointment to the Court of Appeal,” Justice Mugambi said.
The petition arose from the 2022 recruitment of seven judges to the Court of Appeal. While four Employment and Labour Relations Court judges and two Environment and Land Court judges were shortlisted, none were ultimately appointed, with the exception of one judge from private practice.
Omtatah contended that this pattern demonstrated systematic exclusion, but the court found no evidence to support this claim.
Justice Mugambi also addressed the allegation regarding presiding judges, noting that the law allows only High Court judges to be appointed as presiding judges at court stations. He said the petitioner did not challenge the constitutionality of this provision, and there was no proof of discrimination.
The court upheld the JSC’s position that appointments are guided by professional competence, integrity, and merit. Introducing quotas or guaranteed slots for judges from specific courts, the ruling noted, would be unconstitutional.
Justice Mugambi concluded that the claims of discrimination and marginalisation were unsubstantiated, affirming that judicial appointments and leadership designations are based on objective criteria rather than the court a judge currently serves.
"It was thus a bad allegation that was merely thrown at the court without any corresponding proof. On that account, I find that this aspect of discrimination, the petitioner did not discharge the burden of proof," he stated.
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